Commentary

Politicized DOJ Brings Further Shame on Institution in Eric Garner Case

Ron Hosko
By Ron Hosko | October 26, 2016 | 9:19 AM EDT

Loretta Lynch on the day President Obama nominated her to be attorney general. (AP Photo/Carolyn Kaster)

The New York Times reported Monday that the Obama Justice Department has replaced the New York team of FBI agents and its own lawyers investigating the chokehold death of Eric Garner, presumably triggered by a good-faith difference of opinion by the replaced group of agents and prosecutors on whether the arresting police officers should face federal civil rights charges for Garner’s death.

But it stretches the imagination to assume the reason is anything other than concern by Attorney General Loretta Lynch and her Civil Rights Division that an indictment may not be the result of the investigation.

There is no question that the Justice Department has been highly politicized by a president who has repeatedly struck the wrong chords in policing matters.

From his early leap to judgment against Cambridge, Massachusetts officers responding to race-card throwing Henry Gates’ residence following reports of a break-in to the President’s ill-timed supposition in the death of police-assaulter Michael Brown in Ferguson to his, “You’re all racists” memorial service lecture of Dallas police after five of their own were assassinated while escorting a peaceful Black Lives Matter protest in that city, the president’s “leadership” on policing in America has led only to division and distrust. That division and distrust has been exacerbated by a White House that gives inveterate race-baiter Al Sharpton revolving-door access and welcomes in the anti-cop Black Lives Matter, never once condemning their hateful rhetoric against police officers.

Eric Garner died while resisting arrest for a minor offense in late 2014.  We’ve all seen the video, and while Garner’s death was tragic, it wasn’t at all as some would portray it – “killed for selling ‘loosie’ cigarettes.”  Instead, it was preventable – first, by Garner simply complying with police direction; secondly, by better judgments by New York elected and police officials on which crimes merit arrest versus a ticket or summons; and finally through better, consistent use of force training of police.

Although Eric Garner’s death serves to advance the post-Ferguson narrative of over-aggressive, race-driven cops wantonly taking the lives of unarmed, and therefore wholly blameless, black men, even a cursory review of the facts of this and many other cases linked to the narrative points to its apocryphal nature.  But if it’s repeated often enough, printed boldly enough by left-leaning media, which are too seldom constrained by the facts of an encounter, more and more people just may believe it’s true. 

The U.S. Department of Justice is the last institution that should be pushing for a particular result because of its politics.  We would hope that the next group of investigators and prosecutors assigned to assess blame and/or criminality in the death of Eric Garner aren’t arriving with an Obama or Loretta Lynch agenda to fulfill.

Many voices rose up in dissent to candidate Trump’s proclamation that, as president, he’d appoint a special prosecutor to review the Clinton email scandal and to bring charges against his opponent.  Will those same voices be heard as loudly as the DOJ switches horses, presumably to indict a case that other law enforcement professionals thought should not be advanced? 

The case and decision-making have something in common – intent.  To prevail, a federal civil rights prosecution against NYPD officers involved in the arrest will have to show the accused officer(s) intended to deprive Garner of his civil rights.  Simply being involved in struggling with a massive, resisting subject who died after the encounter is not enough.  Proving malevolent intent to deprive Garner of his civil rights is a high bar for the DOJ and should rightly give judicious prosecutors pause, and if indictment quickly follows this DOJ change of investigative/prosecutor team, it’s only right that we citizens raise questions about DOJ’s intent in this case, one I would fully expect the department to lose.

The Department of Justice exists to uphold the rule of law.  But if the politicized Obama-Lynch DOJ is intent on indicting the officers involved in the Eric Garner case, despite facts which are not favorable to a federal prosecution – and it is pretty hard to believe anything else – then they are willingly disregarding the rule of law for a political purpose and bringing further shame on that institution.  

Ron Hosko was formerly Federal Bureau of Investigation (FBI) assistant director and is currently president of the Law Enforcement Legal Defense Fund.

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